Khan case highlights difference between UWC, criminal court

After four hours of deliberations, a six-person jury on Wednesday acquitted Saifullah Khan, a former Yale student who stood trial for allegedly raping another undergraduate in her Trumbull College dorm room in 2015.

But according to three law professors interviewed by the News, the state had strong evidence in its case against Khan, including footage in which he seemed to be propping up his accuser while her leg dragged behind her, evidence that she was denied reentry to the Yale Symphony Orchestra Halloween show because of inebriation, and bruises on her leg that she says appeared the following morning.

The case highlights long-standing tensions over whether campus sexual assault cases should be tried in criminal court — using a “beyond a reasonable doubt” standard of evidence, the highest standard of proof in a court of law — or by University bodies, which commonly use lower evidentiary standards. Under Yale’s “preponderance of evidence” standard, a guilty verdict requires that there be a greater than 50 percent likelihood that the accused committed the crime. Legal authorities say that the “beyond a reasonable doubt” standard requires 98 or 99 percent certainty.

Lawyers and law professors were divided over the efficacy of the strict evidentiary standard in adjudicating sexual misconduct cases, with some arguing that it makes proving sexual misconduct almost impossible. And in the Kahn case, some legal experts questioned the jury’s verdict, while others challenged the fairness of the process and findings.

“There is no infallible system,” said attorney Susan Kaplan, who is representing two students accused of sexual misconduct who are suing the University. “[The legal system] is a damn good system that has been accruing nuances, working out problems, gaining internal wisdom … over centuries of practice and thought and great minds trying to work it through. And so, it’s reliable.”

John D. Villasenor, a UCLA professor who has written extensively on standards of evidence in campus sexual misconduct, said that lower burdens of proof increase the probability of concluding that innocent defendants are guilty. His studies have shown that innocent defendants face a dramatically higher risk of conviction in cases in which a preponderance of evidence suffices for establishing guilt.

In a statement to the News after Khan’s acquittal, Families Advocating for Campus Equality co-president Cynthia Garrett, who advocates for defendant’s rights in campus sexual assault adjudication procedures, said that, this time, the system “worked.”

Still, others argued that the acquittal does not necessarily mean Khan is innocent.

According to University of Pennsylvania law professor Mitchell Berman, who in 2015 signed onto a letter that raised due process concerns for campus sexual misconduct adjudication, the acquittal does not necessarily mean that Khan is not guilty, and jurors may have believed that the defendant was more likely guilty than not, Berman added.

Alternatively, the jury may have concluded that Khan’s behavior was “abominable” but not unlawful, said Katharine Baker a legal expert specializing sexual misconduct law.

In acquaintance rape cases brought to criminal court, it can be difficult to substantiate allegations against the accused, said sexual misconduct legal expert Hannah Brenner. Evidence is often limited to conflicting accounts from the two parties involved, she added, and the evidentiary standard is high to ensure due process rights of the accused.

Few college sexual assault cases go to trial. Still, Khan is not the first college student to receive national attention for criminal charges against him. In 2016, former Stanford student Brock Turner was found guilty of three counts of felony sexual assault.

But unlike the case against Khan, two eyewitnesses testified that they saw Turner on top of his accuser and intervened to try to prevent the assault. The criminal justice system is often unable to prosecute sexual assault cases that revolve around private interactions between two people without other eye-witnesses, said Laura Dunn, a law professor and former executive director of the victim’s advocacy group SurvJustice.

“This is an example of a broken system,” Dunn said.

Now that Khan has been absolved of any wrongdoing, his lawyers say he will likely attempt to reenroll at Yale and finish his last year of college. The University suspended Khan three days before he was arrested, and readmission would “right that wrong,” said his attorney, Norm Pattis.

But just because a jury found Khan not guilty does not mean that a University panel, using a lower standard of evidence, will decide to readmit him to Yale.

Both proponents and critics of campus sexual misconduct policies agree that some students who are guilty in campus adjudications may be acquitted in criminal court, said Berman. Kaplan, the lawyer representing two students suing Yale, said that if Khan were retried under the “preponderance of evidence” standard used by the University-Wide Committee on Sexual Misconduct at Yale there would likely be a different outcome.

Still, she argued, the criminal system works better than Yale’s system, which she says denies students due process.

“I don’t see [how Yale can] achieve an end that somehow, in this topsy turvy world, the criminal justice system is not to be trusted but [Yale’s] semblance of a system somehow is really going to get to the matter and get to some kind of truth,” Kaplan said.

Still, other legal experts argued that despite his acquittal, Khan should not be allowed back on campus. Baker said the behavior Khan admitted to during the trial may not reflect the norms of respect and civility that most universities require of their students, even if his conduct was not criminal.

The University has declined to comment on Khan’s case.

Yale received 124 complaints of sexual misconduct between July 1 and Dec. 31, 2017.